Perez v. International Olympic Committee
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Perez v. International Olympic Committee
COURT OF ARBITRATION FOR SPORT
AD HOC DIVISION: SYDNEY OLYMPIC GAMES
(CAS Arbitration No. SYD 5) (19 Sept. 2000)
120 INTERNATIONAL LAW REPORTS 1 (2002)
Author’s Note: The applicant represented Cuba in the 1992 Olympic Games. After he
defected, the US granted him asylum. He competed in sports events for the US from 1997
to 1999, the year he became a naturalized US citizen. After being selected for the US
kayak team for the 2000 Sydney Olympics, the International Olympic committee (“IOC”)
advised him that he was ineligible to compete, because he had not been a US citizen for
three years prior to the 2000 Olympics. Cuba refused to waive this rule. The US Olympic
Committee (USOC) challenged this IOC decision.
Olympic Court of Arbitration Opinion:
1. FACTS
1. The present proceedings have been commenced by Mr. Angel Perez (the
Claimant) seeking a declaration that he may compete in the 2000 Sydney Olympic
Games as a member of the US Olympic Team.
2. The Claimant was born in Havana in 1971 and competed for Cuba in the 1992
Olympic Games in Barcelona.
3. In May 1993, after a competition in Mexico, the Claimant did not return to
Cuba. He entered the United States and immediately made an application for asylum
under the US immigration laws. He has since been a resident of Miami, and has never
returned to Cuba.
...
5. On 11 September 1995, the Claimant was awarded permanent residence status
as a “Resident Alien” in the US (“Green Card”).
6. The Claimant competed for the US in the kayak World championships in 1997,
1998, and 1999 in accordance with the Rules of the International Canoe Federation.
7. In September 1999, the Claimant obtained US citizenship.
8. On 21 August 2000, the United States Olympic Committee and USA
Canoe/Kayak requested the IOC to grant Mr. Perez the right to participate in the Sydney
2000 Olympic Games. The IOC denied this request on 28 August 2000, for the following
reasons:
The facts of this case clearly fall within paragraph 2 of the Bye-law [sic]
to Rule 46 of the Olympic Charter. In particular, in view of:
(i) Mr. Perez having previously represented Cuba in an international
competition as referred to in Paragraph 2 of the Bye-law to Rule 46 of the
Olympic Charter.
(ii) Less than three years having passed since Mr. Perez has become a
national of the United States; and
Page 1 of 7(iii) The NOC of Cuba not agreeing to reduce this three years period
referred to in Paragraph 2 of the Bye-law to Rule 46 of the Olympic
Charter, Mr. Perez is not eligible to represent the United States at the 2000
Sydney Olympic Games. The IOC regrets that the parties concerned were
not able to resolve this matter so as to allow Mr. Perez to compete for the
United States, especially in view of the fact that it has been approximately
eight years since Mr. Perez last represented Cuba.
9. On 12 September 2000, the USOC and USA Canoe/Kayak commenced
proceedings before the Court of Arbitration for Sport Ad Hoc Division Sydney Olympic
Games seeking a decision, which would allow Mr. Angel Perez to participate for the
United States of America in the Kayak competition of the Sydney 2000 Olympic Games.
10. On 13 September 2000, the CAS Ad Hoc Division for the Sydney Olympic
Games delivered an award dismissing the application.
2. PROCEDURE
11. On 17 September 2000, the Claimant filed the application instituting the
present proceedings. To the application was attached a letter dared 14 September 2000,
signed by Edward W Gnehm, Ambassador of the United States of America, addressed
“To Whom it May Concern” and affirming that the Claimant had been a national of the
United States under US law “for a period considerably in excess of three years” before
the beginning of the 2000 Olympic Games.
12. Hearings were conducted on 18 September 2000....
13. The Cuban National Committee was provided a copy of the application and
invited to attend the hearings as a third interested party entitled to be heard and to adduce
evidence. It did not attend, but prior to the hearings filed a letter ... reading in its entirety
as follows (translation):
The Cuban Olympic Committee has restated on various occasions
that Mr. Angel Perez, athlete in Canoe-Kayak, has not complied with the
requirements of Rule 46 of the Olympic Charter.
In view of the above, the Cuban Olympic Committee confirms that
Mr. Angel Perez is not eligible, and does not authorize him to represent
the US Olympic Committee at the Sydney Olympic Games.
14. At the hearing, the Applicant produced an opinion on relevant Cuban law
signed by Avelino J. Gonzales, Esq., a Cuban lawyer now practicing in Florida who is a
graduate and former Adjunct Professor of the University of Havana. The Respondent
stated that it neither accepted nor rejected the opinion, but did not seek the opportunity to
provide additional evidence.
3. THE PARTIES’ ARGUMENTS
3.1. The Claimant’s Contentions
15. The Claimant argues that he became a US national more than three years
Page 2 of 7before the opening of the Sydney Olympic Games, and that therefore he is entitled to
participate, and to represent the United States, irrespective of the objection sought to be
raised by Cuba under paragraph 2 of the Bye-law to Rule 46 of the Olympic Charter.
16. Secondly, the Claimant argues that even if it is found that he did not become a
US national until 1999, he nevertheless should be treated as a stateless person as of 1993,
with the consequence that he “changed his nationality” for the purposes of Rule 46 more
than three years ago, and thus may participate as a US national irrespective of the Cuban
objection.
2. The Respondent’s Contentions
17. The Respondent considers that the Claimant has not proved that he acquired
US nationality before 1999, and that on that basis Cuban approval was necessary for the
Claimant to participate and represent the US in the Games.
18. As to the contention that the Claimant became stateless as of 1993, the
Respondent takes the position that it does not wish to act adversarially [sic] in the context
of what could be viewed as a debate between the Claimant and the Cuban National
Committee, but that its only concern is the proper application of the Charter. Although
invited to attend the hearing, the Cuban National Committee did not.
4. LEGAL ANALYSIS
4.1. Legal Framework
19. These proceedings are governed by the CAS Arbitration Rules for the Games
of the XXVII Olympiad in Sydney (the “ad hoc Rules”) of CAS enacted by the
International Council of Arbitration for Sport (“ICAS”) on 29 November 1999. They are
further subject to Chapter 12 of the Swiss Private International Law Act of 18 December
1987 as a result of the express choice of law contained in Article 17 ad hoc Rules and the
choice of Lausanne, Switzerland, as the seat of the Ad Hoc Division and of its panels of
Arbitrators, pursuant to Article 7 of the ad hoc Rules.
…
4.3. Merits if the Application
A. The Claimants contention that he was a national of the United States
for more than three years prior to the 2000 Sydney Games
25. The only evidence additional to that which was before us in CAS arbitration
N° SYD 1 is the letter signed by the Ambassador of the United States in Australia (see
Paragraph 11).
26. The award in that case held, at para. 11, that the Claimants there had not
demonstrated that Mr. Perez had acquired US nationality before he was granted
citizenship in September 1999. The Panel indicated (para. 10) that, if factors such as
those invoked by the Claimants could suffice to confer nationality, there would be
numerous examples of attempts—indeed successful attempts—to obtain it.
27 .What is now contended is that the letter by the Ambassador is conclusive as to
what it states, i.e. that the Claimant became a US national for a period considerably in
Page 3 of 7excess of three years before the beginning of the 2000 Olympic Games.
28. The Panel accepts that the Ambassador’s letter is a considered statement by an
accredited representative of the United States. The Panel nevertheless does not regard it
as conclusive. Although it appears to be the case that under US law a person may become
a US national [i.e., acquire a “green card”] before being granted citizenship, the question
remains whether this has occurred. If the Claimant became a US national at least three
years prior to the 2000 Olympic Games as a result of the operation of US law, the Panel
anticipates that this could be the subject of opinion evidence from United States lawyers
competent in the field who could so opine and cite either judicial or administrative
authority to support the conclusion. No such opinion evidence has been tendered.
29. The Panel therefore rejects the Claimant’s submission that on the material in
evidence before it, one should conclude that he acquired US nationality more than three
years before the 2000 Olympic Games.
B. The Claimants alternative contention that Cuban consent is not required
because he should be deemed to have become a stateless person in 1993
30. Paragraph 2 of the Bye-law to Rule 46 of the Olympic Charter provides that a
competitor who has represented one country in the Olympic Games..., and who has
changed his nationality or acquired a new nationality; shall not participate in the Olympic
Games to represent his new country until three years after such change or acquisition.
31. The Claimant argues that as a result of the Cuban legal regime, he became a
stateless person after his defection in 1993, and that even if he did not acquire US
nationality until 1999, he should be deemed to have changed his nationality when he
became stateless.
...
33. The conclusion of the Gonzales Opinion [para. 14 above] is that "Mr. Perez
became stateless when he defected from Cuba back in 1993.”
34. The substantive foundations of this conclusion are as follows:
– under Article 135.1 of the Cuban Penal Code, Law N° 62 of 29 December 1982,
a defector in Mr. Perez’s position could be sentenced to a minimum sentence of
three years in prison, with a maximum of eight years;
– Mr. Perez would not be allowed to travel to Cuba without a visa granted by the
Cuban Immigration Department; a Cuban living abroad could be sentenced to
up to three years in prison for illegal entry under Article 214.1 of the Cuban
Penal Code;
– Cubans residing abroad may not own a business or real property in Cuba;
– irrespective of past social security contributions when they lived in Cuba,
Cubans who leave the country may not collect such benefits when they become
eligible, if they live abroad;
– under Law 989 of 5 December 1961, individuals who have “abandoned
definitively the country” are susceptible to the confiscation of all their property.
35. Mr Gonzales thus concludes that Mr. Perez was effectively deprived of his
civic rights as a Cuban when he defected in 1993, and that he should therefore be treated
Page 4 of 7as a stateless person from that date.
36. In the absence of any contrary evidence or explanation offered by the Cuban
National Olympic Committee, which did not avail itself of the opportunity given to it to
appear, the Panel concludes that the Gonzales Opinion constitutes sufficient evidence to
ground the conclusion that Mr. Perez was, as of 1993, deprived of what is generally
recognized as fundamental civic rights. Issues of national law, when presented to an
international tribunal such as this Panel, must be established by competent evidence
adduced by the parties. The Panel is conscious of the fact that the propositions articulated
by Mr. Gonzales may be susceptible to significant qualifications, or indeed rebuttal, but
the Panel has no reason to question the evidence proffered in the absence of any
challenge to it. This consideration is particularly relevant in circumstances where all
interested parties, including the Cuban National Olympic Committee, know or should
know that CAS is bound to operate with great speed in order to ensure that its decisions
are not pointless given the exigencies of the Olympic schedule.
37. It remains to be examined whether there is an international notion of
statelessness that may be applicable in Mr. Perez’s situation, and if so what its
consequence may be for the purposes of paragraph 2 of the Bye-law to Rule 46 of the
Olympic Charter.
38. It is clear that “statelessness,” as both a concept and status, is well known in
international law.
39. The Panel was referred to several authorities, including Paul Weis, Nationality
and Statelessness (2nd Edn 1979), and Guy S. Goodwin, The Refugee in International
law (2nd Edn 1996).
40. Weis, a former Legal Adviser of the Office of the United Nations High
Commissioner for Refugees, states that a person may become stateless by losing one
nationality without acquiring another. There have been a number of international
conventions dealing with statelessness which, generally speaking, have been directed to
reducing instances of involuntary loss of nationality.
41. In its second session in 1947, the Commission on Human Rights of the United
Nations adopted a Resolution on Stateless Persons in which it expressed the wish that
early consideration be given by the United Nations to the legal status of persons who do
not enjoy the protection of any government, “in particular pending the acquisition of
nationality as regards
their legal and social protection and their documentation.”
42. The UN Secretariat (Social Department) has given the term “stateless persons”
a meaning which includes persons who are not only de jure but also de facto stateless, i.e.
“persons who without having been deprived of their nationality no longer enjoy the
protection and assistance of their national authorities.”
43. Rule 46 of the Olympic Charter requires that “Any competitor in the Olympic
Games must be a national of the country of the NOC which is entering him.” The Bye-
law to Rule 46 is directed to circumstances in which, broadly speaking, the right of an
athlete to compete may be restricted notwithstanding he or she is at the time of the
relevant Games a national of a particular country which has selected him or her as a
competitor.
44. The purpose of nationality in international law is not to give governments any
form of proprietary interest in individuals, as though they were chattels. Nor is it to
Page 5 of 7enable those who govern a country to use individuals as the instruments of their policy.
These considerations are reinforced in circumstances where, as here, the uncontradicted
evidence is that in return for the dominion sought to be exercised over Mr. Perez seven
years after his leaving the country, Cuba apparently withholds from him the benefits of
fundamental civil rights, such as those of freedom of movement and respect for property.
(The present case is thus fundamentally different from that of Miranda v. Cuban Olympic
Committee, CAS arbitration N° SYD 3, where the Claimant was not a defector and
traveled annually to Cuba on a Cuban passport, thus reaffirming his Cuban nationality
until the moment he acquired Canadian citizenship.) The notion that Cuba in these
circumstances should be in a position to prevent Mr. Perez from competing is offensive
to two core principles of the Olympic Charter, namely that the interests of athletes are
fundamental (Rule 3 (1)), and that Olympic competition is among athletes and not
countries (Rule 9 (1)).
45. Having regard to the principles of the Charter, particularly those expressed in
Rules 2, 3, 9 and 31, the Panel considers that the word “nationality” in Rule 46 and its
Bye-law should be construed broadly. In so far as it is relevant to consider whether a
person has lost his or her nationality, the Panel is of the view that a person may be found
to have lost it both in circumstances where he or she is de jure or de facto stateless.
46. As it is the only evidence of Cuban law before us and because the opinion is
consistent at least with the Claimant having become de facto stateless, the Panel is of the
view ... that in 1993, the Claimant at least became de facto stateless. In other words, as a
result of his defection, he was no longer effectively a national of Cuba for the purposes of
Rule 46 notwithstanding that he may in a formal sense have remained a national of Cuba
and been so regarded by the government of that country. Whatever may have happened
between 1993 and 1999, he has clearly now become a national of the United States, and
may, prima facie, be entered as a competitor in these Games by his new country.
47. The final question remains whether, under Bye-law 46.2, the Claimant
“changed” his nationality more than three years prior to the 2000 Sydney Olympic
Games.
48. By definition the word “change” means to “become or make different” or
“alter” or “pass from one form to another” (Oxford Advanced Learners Dictionary).
49. If this word were construed literally, it could be argued that a person does not
change nationality until he or she [fully] changes to another nationality.
50. It is the Panel’s view that the word “change” should be given a broad meaning
to include the situation where a person becomes stateless. If a text may be interpreted in
two ways, the Panel has no hesitation in resolving the ambiguity in favour of an athlete
who is guilty of neither wrong-doing nor even negligence in terms of the Olympic
Charter. The word “change” is appropriate to describe the passing from one form to
another, that is from “nationality” to “statelessness.” Based on the evidence of Cuban law
before the Panel which, in the absence of evidence of the contrary, it feels bound to
accept, that is what happened here.
51. The Panel therefore concludes that the Claimant “changed his nationality” in
1993 for the purposes of paragraph 2 of the Bye-law to Rule 46 of the Olympic Charter,
and that therefore consent under that Bye-law [sic] by the concerned NOCs, including the
Cuban Olympic Committee, is not necessary for him to compete.
52. The Panel further concludes that the Claimant is eligible to participate in the
Page 6 of 72000 Olympic Games on behalf of the United States.
5. DECISION
1. The application is allowed.
2. The decision dated 28 August 2000 finding that the Claimant is not eligible to
represent the United States at the 2000 Sydney Olympic Games is overturned.
3. The Claimant is e1igible to participate and represent the United States in the
2000 Sydney Olympic Games.
Questions:
1. Why did Perez seek to establish that he was “stateless” for a period of time? When
did he become a US “national” under the Court of Arbitration Opinion? Does the Perez
opinion hold that he became a citizen of the United States earlier than when he was
naturalized in 1999? What should be the purpose of “nationality” in International Law?
2. Why did Swiss law govern this dispute? See textbook §1.4 regarding Private
International Law. Why did this case pose a question involving International Law? Is it
because the Olympics are “international?”
3. Was this legal dispute between the United States and Cuba? The US Cuban-
American community, especially in Miami, certainly thought so. See L. Robertson,
Cuban Kayaker’s Case Overturned–He’ll Compete for U.S., Miami Herald (Sept. 18,
2000), available at: .
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